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Sierra v. State

United States District Court, N.D. Florida, Pensacola Division

March 26, 2018

HERIBERTO RUIZ SIERRA, Petitioner,
v.
STATE OF FLORIDA, et al., Respondents.

          REPORT AND RECOMMENDATION

          CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (doc. 1), with supporting memorandum (doc. 2). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that petitioner is not “in custody” for purposes of federal habeas jurisdiction, and that the petition should be dismissed.

         BACKGROUND AND PROCEDURAL HISTORY

         Petitioner is a resident of Crestview, Florida. (Doc. 1, Attach. (mailing envelope); Doc. 2, p. 8 (signature block)). Petitioner names three respondents in this action: the State of Florida; the Department of Revenue; and Stephanie Barlow, the mother of his children. (Doc. 1). Petitioner is challenging child support modification and enforcement orders, including a recent contempt order entered by the Okaloosa County Circuit Court in Case No. 2016-DR-0780 MF, on the grounds that the court improperly included his veteran's disability benefits as income for purposes of calculating his child support. (Docs. 1, 2). As relief, petitioner seeks to vacate “all such voided orders and judgements [sic].”) (Doc. 1, p. 15 in ECF).

         SUBJECT MATTER JURISDICTION

         A federal district court may entertain a habeas corpus petition only from a petitioner “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); see also 28 U.S.C. § 2254(a). This “in custody” requirement is jurisdictional. Stacey v. Warden, Apalachee Corr. Inst., 854 F.2d 401, 403 (11th Cir. 1988). Custody is determined as of the date the habeas petition is filed. Carafas v. LaVallee, 391 U.S. 234, 238-40 (1968).

         Petitioner filed his habeas petition on March 6, 2018. (Doc. 1). It is apparent from the face of the petition and attachments that petitioner was not incarcerated on that date. Although petitioner indicated “Okaloosa County Jail” where the petition form directs him to identify his “Place of Confinement”, (doc. 1, p. 1 in ECF), the mailing envelope for his petition indicates a non-prison return address, as does the signature block in his supporting memorandum. (Doc. 1, p. 54 in ECF; Doc. 2, p. 8 in ECF). Within the body of his petition, petitioner describes his custodial status as “Schedule[d] to go to jail March 21, 2018.” (Doc. 1, p. 5 in ECF). Petitioner attaches a child support enforcement and contempt order, dated February 22, 2018, which provides in relevant part:

4. Sentence to Confinement: Unless the purge payment of $500.00 is paid to the Clerk of the Court no later than MARCH 21, 201[8]:
a. HERIBERTO RUIZ-SIERRA is sentenced to confinement in the OKALOOSA County Jail until purged of the contempt by paying $500.00, which shall be applied toward the child support arrearage, plus sheriff's fee, meal charge, and the costs of transportation.

(Doc. 1, Attach. at 27 in ECF (Order filed 02/22/2018)) (bold in original, underscore added).

         The Supreme Court has recognized various circumstances where restraint short of actual, physical custody is deemed to satisfy the “in custody” requirement. As the Eleventh Circuit explained in Howard v. Warden, 776 F.3d 772 (11th Cir. 2015):

[I]t is by now well-settled that the “use of habeas corpus [is] not . . . restricted to situations in which the applicant is in actual, physical custody, ” Jones v. Cunningham, 371 U.S. 236, 239, 83 S.Ct. 373, 375, 9 L.Ed.2d 285 (1963). Instead, petitioners need only show that they are subject to a significant restraint on their liberty that is not shared by the general public. Id. at 240-43, 83 S.Ct. at 375-77. For example, the Supreme Court has extended habeas review to petitioners released on parole, id. at 242-43, 83 S.Ct. at 377, released on their own recognizance pending execution of a sentence, Hensley v. Mun. Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1575, 36 L.Ed.2d 294 (1973), and free on bail, Lefkowitz v. Newsome, 420 U.S. 283, 291 & n. 8, 95 S.Ct. 886, 891 & n. 8, 43 L.Ed.2d 196 (1975).

Id. at 775.

         The petitioner in Hensley, supra, was sentenced to a year of confinement and a $625 fine, but released on his own recognizance while seeking habeas relief. The Court considered three factors in determining whether he satisfied the “in custody” requirement: (1) whether the petitioner was subject to restraint on his liberty not shared by the general public; (2) whether incarceration was “a speculative possibility that depends on a number of contingencies over which [the petitioner] has no control;” ...


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